LECTURE IV. – FRAUD, MALICE, AND INTENT. —
THE THEORY OF TORTS.

[130] The next subjects to be considered are fraud, malice, and intent.
In the discussion of unintentional wrongs, the greatest difficulty to be
overcome was found to be the doctrine that a man acts always at his peril. In
what follows, on the other hand, the difficulty will be to prove that actual
wickedness of the kind described by the several words just mentioned is not an
element in the civil wrongs to which those words are applied.

It has been shown, in dealing with the criminal law, that, when we call
an act malicious in common speech, we mean that harm to another person was
intended to come of it, and that such harm was desired for its own sake as an
end in itself. For the purposes of the criminal law, however, intent alone was
found to be important, and to have the same consequences as intent with
malevolence superadded. Pursuing the analysis, intent was found to be made up
of foresight of the harm as a consequence, coupled with a desire to bring it
about, the latter being conceived as the motive for the act in question. Of
these, again, foresight only seemed material. As a last step, foresight was
reduced to its lowest term, and it was concluded that, subject to exceptions
which were explained, the general basis of criminal liability was knowledge, at
the time of action, [131] of facts from which common experience showed that
certain harmful results were likely to follow.

It remains to be seen whether a similar reduction is possible on the
civil side of the law, and whether thus fraudulent, malicious, intentional, and
negligent wrongs can be brought into a philosophically continuous series.

A word of preliminary explanation will be useful. It has been shown in
the Lecture just referred to that an act, although always importing intent, is
per se indifferent to the law. It is a willed, and therefore an intended
coordination of muscular contractions. But the intent necessarily imported by
the act ends there. And all muscular motions or co-ordinations of them are
harmless apart from concomitant circumstances, the presence of which is not
necessarily implied by the act itself. To strike out with the fist is the same
act, whether done in a desert or in a crowd.

The same considerations which have been urged to show that an act alone,
by itself, does not and ought not to impose either civil or criminal liability,
apply, at least frequently, to a series of acts, or to conduct, although the
series shows a further co-ordination and a further intent. For instance, it is
the same series of acts to utter a sentence falsely stating that a certain
barrel contains No. 1 Mackerel, whether the sentence is uttered in the secrecy
of the closet, or to another man in the course of a bargain. There is, to be
sure, in either case, the further intent, beyond the co-ordination of muscles
for a single sound, to allege that a certain barrel has certain contents,
— an intent necessarily shown by the ordering of the words. But both the
series of acts and the intent are per se indifferent. They are innocent when
spoken in solitude, and [132] are only a ground of liability when certain
concomitant circumstances are shown.

The intent which is meant when spoken of as an element of legal
liability is an intent directed toward the harm complained of, or at least
toward harm. It is not necessary in every case to carry the analysis back to
the simple muscular contractions out of which a course of conduct is made up.
On the same principle that requires something more than an act followed by
damage to make a man liable, we constantly find ourselves at liberty to assume
a co-ordinated series of acts as a proximately simple element, per se
indifferent, in considering what further circumstances or facts must be present
before the conduct in question is at the actor's peril. It will save confusion
and the need of repetition if this is borne in mind in the following
discussion.

The chief forms of liability in which fraud, malice, and intent are said
to be necessary elements, are deceit, slander and libel, malicious prosecution,
and conspiracy, to which, perhaps, may be added trover.

Deceit is a notion drawn from the moral world, and in its popular sense
distinctly imports wickedness. The doctrine of the common law with regard to it
is generally stated in terms which are only consistent with actual guilt, and
all actual guilty intent. It is said that a man is liable to an action for
deceit if he makes a false representation to another, knowing it to be false,
but intending that the other should believe and act upon it, if the person
addressed believes it, and is thereby persuaded to act to his own harm. This is
no doubt the typical case, and it is a case of intentional moral wrong. Now,
what is the party's conduct here. It consists in uttering certain words, [133]
so ordered that the utterance of them imports a knowledge of the meaning which
they would convey if heard. But that conduct with only that knowledge is
neither moral nor immoral. Go one step further, and add the knowledge of
another's presence within hearing, still the act has no determinate character.
The elements which make it immoral are the knowledge that the statement is
false, and the intent that it shall be acted on.

The principal question then is, whether this intent can be reduced to
the same terms as it has been in other cases. There is no difficulty in the
answer. It is perfectly clear that the intent that a false representation
should be acted on would be conclusively established by proof that the
defendant knew that the other party intended to act upon it. If the defendant
foresaw the consequence of his acts, he is chargeable, whether his motive was a
desire to induce the other party to act, or simply an unwillingness for private
reasons to state the truth. If the defendant knew a present fact (the other
party's intent), which, according to common experience, made it likely that his
act would have the harmful consequence, he is chargeable, whether he in fact
foresaw the consequence or not.

In this matter the general conclusion follows from a single instance.
For the moment it is admitted that in one case knowledge of a present fact,
such as the other party's intent to act on the false statement, dispenses with
proof of an intent to induce him to act upon it, it is admitted that the lesser
element is all that is necessary in the larger compound. For intent embraces
knowledge sufficing for foresight, as has been shown. Hence, when you prove
intent you prove knowledge, and intent may often [134] be the easier to prove
of the two. But when you prove knowledge you do not prove intent.

It may be said, however, that intent is implied or presumed in such a
case as has been supposed. But this is only helping out a false theory by a
fiction. It is very much like saying that a consideration is presumed for an
instrument under seal; which is merely a way of reconciling the formal theory
that all contracts must have a consideration with the manifest fact that sealed
instruments do not require one. Whenever it is said that a certain thing is
essential to liability, but that it is conclusively presumed from something
else, there is always ground for suspicion that the essential clement is to be
found in that something else, and not in what is said to be presumed from
it.

With regard to the intent necessary to deceit, we need not stop with the
single instance which has been given. The law goes no farther than to require
proof either of the intent, or that the other party was justified in inferring
such intention. So that the whole meaning of the requirement is, that the
natural and manifest tendency of the representation, under the known
circumstances, must have been to induce the opinion that it was made with a
view to action, and so to induce action on the faith of it. The standard of
what is called intent is thus really an external standard of conduct under the
known circumstances, and the analysis of the criminal law holds good here.

Nor is this all. The law pursuing its course of specification, as
explained in the last Lecture, decides what is the tendency of representations
in certain cases, — as, for instance, that a horse is sound at the time of
making a [135] sale; or, in general, of any statement of fact which it is known
the other party intends to rely on. Beyond these scientific rules lies the
vague realm of the jury.

The other moral element in deceit is knowledge that the statement was
false. With this I am not strictly concerned, because all that is necessary is
accomplished when the elements of risk are reduced to action and knowledge. But
it will aid in the general object of showing that the tendency of the law
everywhere is to transcend moral and reach external standards, if this
knowledge of falsehood can be transmuted into a formula not necessarily
importing guilt, although, of course, generally accompanied by it in fact. The
moment we look critically at it, we find the moral side shade away.

The question is, what known circumstances are enough throw the risk of a
statement upon him who makes it, if it induces another man to act, and it turns
out untrue. Now, it is evident that a man may take the risk of his statement by
express agreement, or by an implied one which the law reads into his bargain.
He may in legal language warrant the truth of it, and if it is not true, the
law treats it as a fraud, just as much when he makes it fully believing it, as
when he knows that it is untrue, and means to deceive. If, in selling a horse,
the seller warranted him to be only five years old, and in fact he was
thirteen, the seller could be sued for a deceit at common law, although he
thought the horse was only five. /1/ The common-law liability for the truth of
statements is, therefore, more extensive than the sphere of actual moral fraud.
But, again, it is enough in general if a representation [136] is made
recklessly, without knowing whether it is true or false. Now what does
"recklessly" mean. It does not mean actual personal indifference to the truth
of the statement. It means only that the data for the statement were so far
insufficient that a prudent man could not have made it without leading to the
inference that he was indifferent. That is to say, repeating an analysis which
has been gone through with before, it means that the law, applying a general
objective standard, determines that, if a man makes his statement on those
data, he is liable, whatever was the state of his mind, and although he
individually may have been perfectly free from wickedness in making it.

Hence similar reasoning to that which has been applied already to intent
may be applied to knowledge of falsity. Actual knowledge may often be easier to
prove than that the evidence was insufficient to warrant the statement, and
when proved it contains the lesser element. But as soon as the lesser element
is shown to be enough, it is shown that the law is ready to apply an external
or objective standard here also.

Courts of equity have laid down the doctrine in terms which are so
wholly irrespective of the actual moral condition of the defendant as to go to
an opposite extreme. It is said that "when a representation in a matter of
business is made by one man to another calculated to induce him to adapt his
conduct to it, it is perfectly immaterial whether the representation is made
knowing it to be untrue, or whether it is made believing it to be true, if, in
fact, it was untrue." /1/

Perhaps the actual decisions could be reconciled on a [137] narrower
principle, but the rule just stated goes the length of saying that in business
matters a man makes every statement (of a kind likely to be acted on) at his
peril. This seems hardly justifiable in policy. The moral starting point of
liability in general should never be forgotten, and the law cannot without
disregarding it hold a man answerable for statements based on facts which would
have convinced a wise and prudent man of their truth. The public advantage and
necessity of freedom in imparting information, which privileges even the
slander of a third person, ought a fortiori, it seems to me, to privilege
statements made at the request of the party who complains of them.

The common law, at any rate, preserves the reference to morality by
making fraud the ground on which it goes. It does not hold that a man always
speaks at his peril. But starting from the moral ground, it works out an
external standard of what would be fraudulent in the average prudent member of
the community, and requires every member at his peril to avoid that. As in
other cases, it is gradually accumulating precedents which decide that certain
statements under certain circumstances are at the peril of the party who makes
them.

The elements of deceit which throw the risk of his conduct upon a party
are these. First, making a statement of facts purporting to be serious. Second,
the known presence of another within hearing. Third, known facts sufficient to
warrant the expectation or suggest the probability that the other party will
act on the statement. (What facts are sufficient has been specifically
determined by the courts in some instances; in others, no doubt, the question
would go to the jury on the principles heretofore explained.) Fourth, the [138]
falsehood of the statement. This must be known, or else the known evidence
concerning the matter of the statement must be such as would not warrant belief
according to the ordinary course of human experience. (On this point also the
court may be found to lay down specific rules in some cases. /1/)

I next take up the law of slander. It has often been said that malice is
one of the elements of liability, and the doctrine is commonly stated in this
way: that malice must exist, but that it is presumed by law from the mere
speaking of the words; that again you may rebut this presumption of malice by
showing that the words were spoken under circumstances which made the
communication privileged, — as, for instance, by a lawyer in the necessary
course of his argument, or by a person answering in good faith to inquiries as
to the character of a former servant,- and then, it is said, the plaintiff may
meet this defence in some cases by showing that the words were spoken with
actual malice.

All this sounds as if at least actual intent to cause the damage
complained of, if not malevolence, were at the bottom of this class of wrongs.
Yet it is not so. For although the use of the phrase "malice" points as usual
to an original moral standard, the rule that it is presumed upon proof of
speaking certain words is equivalent to saying that the overt conduct of
speaking those words may be actionable whether the consequence of damage to the
plaintiff was intended or not. And this fails in with the general theory,
because the manifest tendency of slanderous words is to harm the person of whom
they are spoken. Again, the real substance of the defence is not that the
damage [139] was not intended, — that would be no defence at all; but
that, whether it was intended or not, — that is, even if the defendant
foresaw it and foresaw it with pleasure, — the manifest facts and
circumstances under which he said it were such that the law considered the
damage to the plaintiff of less importance than the benefit of free
speaking.

It is more difficult to apply the same analysis to the last stage of the
process, but perhaps it is not impossible. It is said that the plaintiff may
meet a case of privilege thus made out on the part of the defendant, by proving
actual malice, that is, actual intent to cause the damage complained of. But
how is this actual malice made out? It is by showing that the defendant knew
the statement which he made was false, or that his untrue statements were
grossly in excess of what the occasion required. Now is it not very evident
that the law is looking to a wholly different matter from the defendant's
intent? The fact that the defendant foresaw and foresaw with pleasure the
damage to the plaintiff, is of no more importance in this case than it would be
where the communication was privileged. The question again is wholly a question
of knowledge, or other external standard. And what makes even knowledge
important? It is that the reason for which a man is allowed in the other
instances to make false charges against his neighbors is wanting. It is for the
public interest that people should be free to give the best information they
can under certain circumstances without fear, but there is no public benefit in
having lies told at any time; and when a charge is known to be false, or is in
excess of what is required by the occasion, it is not necessary to make that
charge in order to speak freely, and [140] therefore it falls under the
ordinary rule, that certain charges are made at the party's peril in case they
turn out to be false, whether evil consequences were intended or not. The
defendant is liable, not because his intent was evil, but because he made false
charges without excuse.

It will be seen that the peril of conduct here begins farther back than
with deceit, as the tendency of slander is more universally harmful. There must
be some concomitant circumstances. There must at least be a human being in
existence whom the statement designates. There must be another human being
within hearing who understands the statement, and the statement must be false.
But it is arguable that the latter of these facts need not be known, as
certainly the falsity of the charge need not be, and that a man must take the
risk of even an idle statement being heard, unless he made it under known
circumstances of privilege. It would be no great curtailment of freedom to deny
a man immunity in attaching a charge of crime to the name of his neighbor, even
when he supposes himself alone. But it does not seem clear that the law would
go quite so far as that.

The next form of liability is comparatively insignificant. I mean the
action for malicious prosecution. A man may recover damages against another for
maliciously and without probable cause instituting a criminal, or, in some
cases, a civil prosecution against him upon a false charge. The want of
probable cause refers, of course, only to the state of the defendant's
knowledge, not to his intent. It means the absence of probable cause in the
facts known to the defendant when he instituted the suit. But the standard
applied to the defendant's consciousness is external to it. The question is not
whether he thought the [141] facts to constitute probable cause, but whether
the court thinks they did.

Then as to malice. The conduct of the defendant consists in instituting
proceedings on a charge which is in fact false, and which has not prevailed.
That is the root of the whole matter. If the charge was true, or if the
plaintiff has been convicted, even though he may be able now to prove that he
was wrongly convicted, the defendant is safe, however great his malice, and
however little ground he had for his charge.

Suppose, however, that the charge is false, and does not prevail. It may
readily be admitted that malice did originally mean a malevolent motive, an
actual intent to harm the plaintiff by making a false charge. The legal remedy
here, again, started from the moral basis, the occasion for it, no doubt, being
similar to that which gave rise to the old law of conspiracy, that a man's
enemies would sometimes seek his destruction by setting the criminal law in
motion against him. As it was punishable to combine for such a purpose, it was
concluded, with some hesitation, that, when a single individual wickedly
attempted the same thing, he should be liable on similar grounds. /1/ I must
fully admit that there is weighty authority to the effect that malice in its
ordinary sense is to this day a distinct fact to be proved and to be found by
the jury.

But this view cannot be accepted without hesitation. It is admitted
that, on the one side, the existence of probable cause, believed in, is a
justification notwithstanding malice; /2/ that, on the other, "it is not enough
to show [142] that the case appeared sufficient to this particular party, but
it must be sufficient to induce a sober, sensible and discreet person to act
upon it, or it must fail as a justification for the proceeding upon general
grounds." /1/ On the one side, malice alone will not make a man liable for
instituting a groundless prosecution; on the other, his justification will
depend, not on his opinion of the facts, but on that of the court. When his
actual moral condition is disregarded to this extent, it is a little hard to
believe that the existence of an improper motive should be material. Yet that
is what malice must mean in this case, if it means anything. /2/ For the evil
effects of a successful indictment are of course intended by one who procures
all other to be indicted. I cannot but think that a jury would be told that
knowledge or belief that the charge was false at the time of making it was
conclusive evidence of malice. And if so, on grounds which need not be
repeated, malice is not the important thing, but the facts known to the
defendant.

Nevertheless, as it is obviously treading on delicate ground to make it
actionable to set the regular processes of the law in motion, it is, of course,
entirely possible to say that the action shall be limited to those cases where
the charge was preferred from improper motives, at least if the defendant
thought that there was probable cause. Such a limitation would stand almost
alone in the law of civil liability. But the nature of the wrong is peculiar,
and, moreover, it is quite consistent with the theory of liability here
advanced that it should be confined in any given instance to actual wrong-doing
in a moral sense.

The only other cause of action in which the moral condition [143] of the
defendant's consciousness might seem to be important is conspiracy. The old
action going by that name was much like malicious prosecution, and no doubt was
originally confined to cases where several persons had conspired to indict
another from malevolent motives. But in the modern action on the case, where
conspiracy is charged, the allegation as a rule only means that two or more
persons were so far co-operating in their acts that the act of any one was the
act of all. Generally speaking, the liability depends not on the co-operation
or conspiring, but on the character of the acts done, supposing them all to be
done by one man, or irrespective of the question whether they were done by one
or several. There may be cases, to be sure, in which the result could not be
accomplished, or the offence could not ordinarily be proved, without a
combination of several; as, for instance, the removal of a teacher by a school
board. The conspiracy would not affect the case except in a practical way, but
the question would be raised whether, notwithstanding the right of the board to
remove, proof that they were actuated by malevolence would not make a removal
actionable. Policy, it might be said, forbids going behind their judgment, but
actual evil motives coupled with the absence of grounds withdraw this
protection, because policy, although it does not require them to take the risk
of being right, does require that they should judge honestly on the merits.
/1/

Other isolated instances like the last might, perhaps, be found in
different parts of the law, in which actual malevolence would affect a man's
liability for his conduct. Again, in trover for the conversion of another's
chattel, where the dominion exercised over it was of a slight and ambiguous
[144] nature, it has been said that the taking must be "with the intent of
exercising an ownership over the chattel inconsistent with the real owner's
right of possession." /l / But this seems to be no more than a faint shadow of
the doctrine explained with regard to larceny, and does not require any further
or special discussion. Trover is commonly understood to go, like larceny, on
the plaintiff's being deprived of his property, although in practice every
possessor has the action, and, generally speaking, the shortest wrongful
withholding of possession is a conversion.

Be the exceptions more or less numerous, the general purpose of the law
of torts is to secure a man indemnity against certain forms of harm to person,
reputation, or estate, at the hands of his neighbors, not because they are
wrong, but because they are harms. The true explanation of the reference of
liability to a moral standard, in the sense which has been explained, is not
that it is for the purpose of improving men's hearts, but that it is to give a
man a fair chance to avoid doing the harm before he is held responsible for it.
It is intended to reconcile the policy of letting accidents lie where they
fall, and the reasonable freedom of others with the protection of the
individual from injury.

But the law does not even seek to indemnify a man from all harms. An
unrestricted enjoyment of all his possibilities would interfere with other
equally important enjoyments on the part of his neighbors. There are certain
things which the law allows a man to do, notwithstanding the fact that he
foresees that harm to another will follow from them. He may charge a man with
crime if the charge is true. He may establish himself in business where he
foresees that [145] of his competition will be to diminish the custom of
another shopkeeper, perhaps to ruin him. He may a building which cuts another
off from a beautiful prospect, or he may drain subterranean waters and thereby
drain another's well; and many other cases might be put.

As any of these things may be done with foresight of their evil
consequences, it would seem that they might be done with intent, and even with
malevolent intent, to produce them. The whole argument of this Lecture and the
preceding tends to this conclusion. If the aim of liability is simply to
prevent or indemnify from harm so far as is consistent with avoiding the
extreme of making a man answer for accident, when the law permits the harm to
be knowingly inflicted it would be a strong thing if the presence of malice
made any difference in its decisions. That might happen, to be sure, without
affecting the general views maintained here, but it is not to be expected, and
the weight of authority is against it.

As the law, on the one hand, allows certain harms to be inflicted
irrespective of the moral condition of him who inflicts them, so, at the other
extreme, it may on grounds of policy throw the absolute risk of certain
transactions on the person engaging in them, irrespective of blameworthiness in
any sense. Instances of this sort have been mentioned in the last Lecture, /1/
and will be referred to again.

Most liabilities in tort lie between these two extremes, and are founded
on the infliction of harm which the defendant had a reasonable opportunity to
avoid at the time of the acts or omissions which were its proximate cause. Rut
as fast as specific rules are worked out in place of the [146] vague reference
to the conduct of the average man, they range themselves alongside of other
specific rules based on public policy, and the grounds from which they spring
cease to be manifest. So that, as will be seen directly, rules which seem to
lie outside of culpability in any sense have sometimes been referred to remote
fault, while others which started from the general notion of negligence may
with equal ease be referred to some extrinsic ground of policy.

Apart from the extremes just mentioned, it is now easy to see how the
point at which a man's conduct begins to be at his own peril is generally
fixed. When the principle is understood on which that point is determined by
the law of torts, we possess a common ground of classification, and a key to
the whole subject, so far as tradition has not swerved the law from a
consistent theory. It has been made pretty clear from what precedes, that I
find that ground in knowledge of circumstances accompanying an act or conduct
indifferent but for those circumstances.

But it is worth remarking, before that criterion is discussed, that a
possible common ground is reached at the preceding step in the descent from
malice through intent and foresight. Foresight is a possible common denominator
of wrongs at the two extremes of malice and negligence. The purpose of the law
is to prevent or secure a man indemnity from harm at the hands of his
neighbors, so far as consistent with other considerations which have been
mentioned, and excepting, of course, such harm as it permits to be
intentionally inflicted. When a man foresees that harm will result from his
conduct, the principle which exonerates him from accident no longer applies,
and he is liable. But, as has been shown, he is bound to foresee [147] whatever
a prudent and intelligent man would have foreseen, and therefore he is liable
for conduct from which such a man would have foreseen that harm was liable to
follow.

Accordingly, it would be possible to state all cases of negligence in
terms of imputed or presumed foresight. It would be possible even to press the
presumption further, applying the very inaccurate maxim, that every man is
presumed to intend the natural consequences of his own acts; and this mode of
expression will, in fact, be found to have been occasionally used, /1/ more
especially in the criminal law, where the notion of intent has a stronger
foothold. /2/ The latter fiction is more remote and less philosophical than the
former; but, after all, both are equally fictions. Negligence is not foresight,
but precisely the want of it; and if foresight were presumed, the ground of the
presumption, and therefore the essential element, would be the knowledge of
facts which made foresight possible.

Taking knowledge, then, as the true starting-point, the next question is
how to determine the circumstances necessary to be known in any given case in
order to make a man liable for the consequences of his act. They must be such
as would have led a prudent man to perceive danger, although not necessarily to
foresee the specific harm. But this is a vague test. How is it decided what
those circumstances are? The answer must be, by experience.

But there is one point which has been left ambiguous in the preceding
Lecture and here, and which must be touched upon. It has been assumed that
conduct which [148] the man of ordinary intelligence would perceive to be
dangerous under the circumstances, would be blameworthy if pursued by him. It
might not be so, however. Suppose that, acting under the threats of twelve
armed men, which put him in fear of his life, a man enters another's close and
takes a horse. In such a case, he actually contemplates and chooses harm to
another as the consequence of his act. Yet the act is neither blameworthy nor
punishable. But it might be actionable, and Rolle, C. J. ruled that it was so
in Gilbert v. Stone. /1/ If this be law, it goes the full length of deciding
that it is enough if the defendant has had a chance to avoid inflicting the
harm complained of. And it may well be argued that, although he does wisely to
ransom his life as he best may, there is no reason why he should be allowed to
intentionally and permanently transfer his misfortunes to the shoulders of his
neighbors.

It cannot be inferred, from the mere circumstance that certain conduct
is made actionable, that therefore the law regards it as wrong, or seeks to
prevent it. Under our mill acts a man has to pay for flowing his neighbor's
lands, in the same way that he has to pay in trover for converting his
neighbor's goods. Yet the law approves and encourages the flowing of lands for
the erection of mills.

Moral predilections must not be allowed to influence our minds in
settling legal distinctions. If we accept the test of the liability alone, how
do we distinguish between trover and the mill acts? Or between conduct which is
prohibited, and that which is merely taxed? The only distinction which I can
see is in the difference of the collateral consequences attached to the two
classes of conduct. In the one, the maxim in pari delicto potior est [149]
conditio defendentis, and the invalidity of contracts contemplating it, show
that the conduct is outside the protection of the law. In the other, it is
otherwise. /1/ This opinion is confirmed by the fact, that almost the only
cases in which the distinction between prohibition and taxation comes up
concern the application of these maxims.

But if this be true, liability to an action does not necessarily import
wrong- doing. And this may be admitted without at all impairing the force of
the argument in the foregoing Lecture, which only requires that people should
not be made to pay for accidents which they could not have avoided.

It is doubtful, however, whether the ruling of Chief Justice Rolle would
now be followed. The squib case, Scott v. Shepherd, and the language of some
text- books, are more or less opposed to it. /2/ If the latter view is law,
then an act must in general not only be dangerous, but one which would be
blameworthy on the part of the average man, in order to make the actor liable.
But, aside from such exceptional cases as Gilbert v. Stone, the two tests
agree, and the difference need not be considered in what follows.

I therefore repeat, that experience is the test by which it is decided
whether the degree of danger attending given conduct under certain known
circumstances is sufficient to throw the risk upon the party pursuing it.

For instance, experience shows that a good many guns supposed to be
unloaded go off and hurt people. The ordinarily intelligent and prudent member
of the community [150] would foresee the possibility of danger from pointing a
gun which he had not inspected into a crowd, and pulling the trigger, although
it was said to be unloaded. Hence, it may very properly be held that a man who
does such a thing does it at his peril, and that, if damage ensues, he is
answerable for it. The co-ordinated acts necessary to point a gun and pull a
trigger, and the intent and knowledge shown by the co-ordination of those acts,
are all consistent with entire blamelessness. They threaten harm to no one
without further facts. But the one additional circumstance of a man in the line
and within range of the piece makes the conduct manifestly dangerous to any one
who knows the fact. There is no longer any need to refer to the prudent man, or
general experience. The facts have taught their lesson, and have generated a
concrete and external rule of liability. He who snaps a cap upon a gun pointed
in the direction of another person, known by him to be present, is answerable
for the consequences.

The question what a prudent man would do under given circumstances is
then equivalent to the question what are the teachings of experience as to the
dangerous character of this or that conduct under these or those circumstances;
and as the teachings of experience are matters of fact, it is easy to see why
the jury should be consulted with regard to them. They are, however, facts of a
special and peculiar function. Their only bearing is on the question, what
ought to have been done or omitted under the circumstances of the case, not on
what was done. Their function is to suggest a rule of conduct.

Sometimes courts are induced to lay down rules by facts of a more
specific nature; as that the legislature passed a certain statute, and that the
case at bar is within [151] the fair meaning of its words; or that the practice
of a specially interested class, or of the public at large, has generated a
rule of conduct outside the law which it is desirable that the courts should
recognize and enforce. These are matters of fact, and have sometimes been
pleaded as such. But as their only importance is, that, if believed, they will
induce the judges to lay down a rule of conduct, or in other words a rule of
law, suggested by them, their tendency in most instances is to disappear as
fast as the rules suggested by them become settled. /1/ While the facts are
uncertain, as they are still only motives for decision upon the law, —
grounds for legislation, so to speak, — the judges may ascertain them in
any way which satisfies their conscience. Thus, courts recognize the statutes
of the jurisdiction judicially, although the laws of other jurisdictions, with
doubtful wisdom, are left to the jury. /2/ They may take judicial cognizance of
a custom of merchants. /3/ In former days, at least, they might inquire about
it in pais after a demurrer. /4/ They may act on the statement of a special
jury, as in the time of Lord Mansfield and his successors, or upon the finding
of a common jury based on the testimony of witnesses, as is the practice to-day
in this country. But many instances will be found the text-books which show
that, when the facts are ascertained, they soon cease to be referred to, and
give place to a rule of law.

[152] The same transition is noticeable with regard to the teachings of
experience. There are many cases, no doubt, in which the court would lean for
aid upon a jury; but there are also many in which the teaching has been
formulated in specific rules. These rules will be found to vary considerably
with regard to the number of concomitant circumstances necessary to throw the
peril of conduct otherwise indifferent on the actor. As the circumstances
become more numerous and complex, the tendency to cut the knot with the jury
becomes greater. It will be useful to follow a line of cases up from the simple
to the more complicated, by way of illustration. The difficulty of
distinguishing rules based on other grounds of policy from those which have
been worked out in the field of negligence, will be particularly noticed.

In all these cases it will be found that there has been a voluntary act
on the part of the person to be charged. The reason for this requirement was
shown in the foregoing Lecture. Unnecessary though it is for the defendant to
have intended or foreseen the evil which he has caused, it is necessary that he
should have chosen the conduct which led to it. But it has also been shown that
a voluntary act is not enough, and that even a co-ordinated series of acts or
conduct is often not enough by itself. But the co-ordination of a series of
acts shows a further intent than is necessarily manifested by any single act,
and sometimes proves with almost equal certainty the knowledge of one or more
concomitant circumstances. And there are cases where conduct with only the
intent and knowledge thus necessarily implied is sufficient to throw the risk
of it on the actor.

For instance, when a man does the series of acts called [153] walking,
it is assumed for all purposes of responsibility that he knows the earth is
under his feet. The conduct per se is indifferent, to be sure. A man may go
through the motions of walking without legal peril, if he chooses to practise
on a private treadmill; but if he goes through the same motions on the surface
of the earth, it cannot be doubted that he knows that the earth is there. With
that knowledge, he acts at his peril in certain respects. If he crosses his
neighbor's boundary, he is a trespasser. The reasons for this strict rule have
been partially discussed in the last Lecture. Possibly there is more of history
or of past or present notions of policy its explanation than is there
suggested, and at any rate I do not care to justify the rule. But it is
intelligible. A man who walks knows that he is moving over the surface of the
earth, he knows that he is surrounded by private estates which he has no right
to enter, and he knows that his motion, unless properly guided, will carry him
into those estates. He is thus warned, and the burden of his conduct is thrown
upon himself.

But the act of walking does not throw the peril of all possible
consequences upon him. He may run a man down in the street, but he is not
liable for that unless he does it negligently. Confused as the law is with
cross-lights of tradition, and hard as we may find it to arrive at perfectly
satisfactory general theory, it does distinguish in a pretty sensible way,
according to the nature and degree of the different perils incident to a given
situation.

>From the simple case of walking we may proceed to the more complex
cases of dealings with tangible objects of property. It may be said that,
generally speaking, a man meddles with such things at his own risk. It does not
[154] matter how honestly he may believe that they belong to himself, or are
free to the public, or that he has a license from the owner, or that the case
is one in which the law has limited the rights of ownership; he takes the
chance of how the fact may turn out, and if the fact is otherwise than as he
supposes, he must answer for his conduct. As has been already suggested, he
knows that he is exercising more or less dominion over property, or that he is
injuring it; he must make good his right if it is challenged.

Whether this strict rule is based on the common grounds of liability, or
upon some special consideration of past or present policy, policy has set some
limits to it, as was mentioned in the foregoing Lecture.

Another case of conduct which is at the risk of the party without
further knowledge than it necessarily imports, is the keeping of a tiger or
bear, or other animal of a species commonly known to be ferocious. If such an
animal escapes and does damage, the owner is liable simply on proof that he
kept it. In this instance the comparative remoteness of the moment of choice in
the line of causation from the effect complained of, will be particularly
noticed. Ordinary cases of liability arise out of a choice which was the
proximate cause of the harm upon which the action is founded. But here there is
usually no question of negligence in guarding the beast. It is enough in most,
if not in all cases, that the owner has chosen to keep it. Experience has shown
that tigers and bears are alert to find means of escape, and that, if they
escape, they are very certain to do harm of a serious nature. The possibility
of a great danger has the same effect as the probability of a less one, and the
law throws the risk of [155] the venture on the person who introduces the peril
into the community.

This remoteness of the opportunity of choice goes far to show that this
risk is thrown upon the owner for other reasons than the ordinary one of
imprudent conduct. It has been suggested that the liability stood upon remote
inadvertence. /1/ But the law does not forbid a man to keep a menagerie, or
deem it in any way blameworthy. It has applied nearly as strict a rule to
dealings which are even more clearly beneficial to the community than a show of
wild beasts.

This seems to be one of those cases where the ground of liability is to
be sought in policy coupled with tradition, rather than in any form of
blameworthiness, or the existence of such a chance to avoid doing the harm as a
man is usually allowed. But the fact that remote inadvertence has been
suggested for an explanation illustrates what has been said about the
difficulty of deciding whether a given rule is founded on special grounds, or
has been worked out within the sphere of negligence, when once a special rule
has been laid down.

It is further to be noticed that there is no question of the defendant's
knowledge of the nature of tigers, although without that knowledge he cannot be
said to have intelligently chosen to subject the community to danger. Here
again even in the domain of knowledge the law applies its principle of
averages. The fact that tigers and bears are ::dangerous is so generally known,
that a man who keeps them is presumed to know their peculiarities. In other
words, he does actually know that he has an animal with certain teeth, claws,
and so forth, and he must find out the [156] rest of what an average member of
the community would know, at his peril.

What is true as to damages in general done by ferocious wild beasts is
true as to a particular class of damages done by domestic cattle, namely,
trespasses upon another's land. This has been dealt with in former Lectures,
and it is therefore needless to do more than to recall it here, and to call
attention to the distinction based on experience and policy between damage
which is and that which is not of a kind to be expected. Cattle generally stray
and damage cultivated land when they get upon it. They only exceptionally hurt
human beings.

I need not recur to the possible historical connection of either of
these last forms of liability with the noxoe deditio, because, whether that
origin is made out or not, the policy of the rule has been accepted as sound,
and carried further in England within the last few years by the doctrine that a
man who brings upon his land and keeps there anything likely to do mischief if
it escape, must keep it in at his peril. /1/ The strictness of this principle
will vary in different jurisdictions, as the balance varies between the
advantages to the public and the dangers to individuals from the conduct in
question. Danger of harm to others is not the only thing to be considered, as
has been said already. The law allows some harms to be intentionally inflicted,
and a fortiori some risks to be intentionally run. In some Western States a man
is not required to keep his cattle fenced in. Some courts have refused to
follow Rylands v. Fletcher. /2/ On the other hand, the principle has been
applied to artificial [157] reservoirs of water, to cesspools, to accumulations
of snow and ice upon a building by reason of the form of its roof, and to party
walls. /1/

In these cases, as in that of ferocious animals, it is no excuse that
the defendant did not know, and could not have found out, the weak point from
which the dangerous object escaped. The period of choice was further back, and,
although he was not to blame, he was bound at his peril to know that the object
was a continual threat to his neighbors, and that is enough to throw the risk
of the business on him.

I now pass to cases one degree more complex than those so far
considered. In these there must be another concomitant circumstance known to
the party in addition to those of which the knowledge is necessarily or
practically proved by his conduct. The cases which naturally suggest themselves
again concern animals. Experience as interpreted by the English law has shown
that dogs, rams, and bulls are in general of a tame and mild nature, and that,
if any one of them does by chance exhibit a tendency to bite, butt, or gore, it
is an exceptional phenomenon. Hence it is not the law that a man keeps dogs,
rams, bulls, and other like tame animals at his peril as to the personal
damages which they may inflict, unless he knows or has notice that the
particular animal kept by him has the abnormal tendency which they do sometimes
show. The law has, however, been brought a little nearer to actual experience
by statute in many jurisdictions.

Now let us go one step farther still. A man keeps an unbroken and unruly
horse, knowing it to be so. That is not enough to throw the risk of its
behavior on him. The [158] tendency of the known wildness is not dangerous
generally, but only under particular circumstances. Add to keeping, the attempt
to break the horse; still no danger to the public is disclosed. But if the
place where the owner tries to break it is a crowded thoroughfare, the owner
knows an additional circumstance which, according to common experience, makes
this conduct dangerous, and therefore must take the risk of what harm may be
done. /1/ On the other hand, if a man who was a good rider bought a horse with
no appearance of vice and mounted it to ride home, there would be no such
apparent danger as to make him answerable if the horse became unruly and did
damage. /2/ Experience has measured the probabilities and draws the line
between the two cases.

Whatever may be the true explanation of the rule applied to keeping
tigers, or the principle of Rylands v. Fletcher, in the last cases we have
entered the sphere of negligence, and, if we take a case lying somewhere
between the two just stated, and add somewhat to the complexity of the
circumstances, we shall find that both conduct and standard would probably be
left without much discrimination to the jury, on the broad issue whether the
defendant had acted as a prudent man would have done under the
circumstances.

As to wrongs called malicious or intentional it is not necessary to
mention the different classes a second time, and to find them a place in this
series. As has been seen, they vary in the number of circumstances which must
be known. Slander is conduct which is very generally at the risk of [159] the
speaker, because, as charges of the kind with which it deals are manifestly
detrimental, the questions which practically arise for the most part concern
the defence of truth or privilege. Deceit requires more, but still simple
facts. Statements do not threaten the harm in question unless they are made
under such circumstances as to naturally lead to action, and are made on
insufficient grounds.

It is not, however, without significance, that certain wrongs are
described in language importing intent. The harm in such cases is most
frequently done intentionally, if intent to cause a certain harm is shown,
there need to prove knowledge of facts which made it that harm would follow.
Moreover, it is often much easier to prove intent directly, than to prove the
knowledge which would make it unnecessary.

The cases in which a man is treated as the responsible cause of a given
harm, on the one hand, extend beyond those in which his conduct was chosen in
actual contemplation of that result, and in which, therefore, he may be to have
chosen to cause that harm; and, on the other hand, they do not extend to all
instances where the damages would not have happened but for some remote
election his part. Generally speaking, the choice will be found to have
extended further than a simple act, and to co-ordinated acts into conduct. Very
commonly it will have extended further still, to some external consequence. But
generally, also, it will be found to have stopped short of the consequence
complained of.

The question in each case is whether the actual choice, or, in other
words, the actually contemplated result, was near enough to the remoter result
complained of to throw the peril of it upon the actor.

[160] Many of the cases which have been put thus far are cases where the
proximate cause of the loss was intended to be produced by the defendant. But
it will be seen that the same result may be caused by a choice at different
points. For instance, a man is sued for having caused his neighbor's house to
burn down. The simplest case is, that he actually intended to burn it down. If
so, the length of the chain of physical causes intervening is of no importance,
and has no bearing on the case.

But the choice may have stopped one step farther back. The defendant may
have intended to light a fire on his own land, and may not have intended to
burn the house. Then the nature of the intervening and concomitant physical
causes becomes of the highest importance. The question will be the degree of
danger attending the contemplated (and therefore chosen) effect of the
defendant's conduct under the circumstances known to him. If this was very
plain and very great, as, for instance, if his conduct consisted in lighting
stubble near a haystack close to the house, and if the manifest circumstances
were that the house was of wood, the stubble very dry, and the wind in a
dangerous quarter, the court would probably rule that he was liable. If the
defendant lighted an ordinary fire in a fireplace in an adjoining house, having
no knowledge that the fireplace was unsafely constructed, the court would
probably rule that he was not liable. Midway, complicated and doubtful cases
would go to the jury.

But the defendant may not even have intended to set the fire, and his
conduct and intent may have been simply to fire a gun, or, remoter still, to
walk across a room, in doing which he involuntarily upset a bottle of acid. So
that cases may go to the jury by reason of the remoteness [161] of the choice
in the series of events, as well as because of the complexity of the
circumstances attending the act or conduct. The difference is, perhaps, rather
dramatic than substantial.

But the philosophical analysis of every wrong begins by determining what
the defendant has actually chosen, that is to say, what his voluntary act or
conduct has been, and what consequences he has actually contemplated as flowing
from them, and then goes on to determine what dangers attended either the
conduct under the known circumstances, or its contemplated consequence under
the contemplated circumstances.

Take a case like the glancing of Sir Walter Tyrrel's arrow. If an expert
marksman contemplated that the arrow would hit a certain person, cadit
qucoestio. If he contemplated that it would glance in the direction of another
person, but contemplated no more than that, in order to judge of his liability
we must go to the end of his fore- sight, and, assuming the foreseen event to
happen, consider what the manifest danger was then. But if no such event was
foreseen, the marksman must be judged by the circumstances known to him at the
time of shooting.

The theory of torts may be summed up very simply. At the two extremes of
the law are rules determined by policy without reference of any kind to
morality. Certain harms a man may inflict even wickedly; for certain others he
must answer, although his conduct has been prudent and beneficial to the
community.

But in the main the law started from those intentional wrongs which are
the simplest and most pronounced cases, as well as the nearest to the feeling
of revenge which leads to self-redress. It thus naturally adopted the
vocabulary, [162] and in some degree the tests, of morals. But as the law has
grown, even when its standards have continued to model themselves upon those of
morality, they have necessarily become external, because they have considered,
not the actual condition of the particular defendant, but whether his conduct
would have been wrong in the fair average member of the community, whom he is
expected to equal at his peril.

In general, this question will be determined by considering the degree
of danger attending the act or conduct under the known circumstances. If there
is danger that harm to another will follow, the act is generally wrong in the
sense of the law.

But in some cases the defendant's conduct may not have been morally
wrong, and yet he may have chosen to inflict the harm, as where he has acted in
fear of his life. In such cases he will be liable, or not, according as the law
makes moral blameworthiness, within the limits explained above, the ground of
liability, or deems it sufficient if the defendant has had reasonable warning
of danger before acting. This distinction, however, is generally unimportant,
and the known tendency of the act under the known circumstances to do harm may
be accepted as the general test of conduct.

The tendency of a given act to cause harm under given circumstances must
be determined by experience. And experience either at first hand or through the
voice of the jury is continually working out concrete rules, which in form are
still more external and still more remote from a reference to the moral
condition of the defendant, than even the test of the prudent man which makes
the first stage of the division between law and morals. It does this in the
domain [163] of wrongs described as intentional, as systematically as in those
styled unintentional or negligent.

But while the law is thus continually adding to its specific rules, it
does not adopt the coarse and impolitic principle that a man acts always at his
peril. On the contrary, its concrete rules, as well as the general questions
addressed to the jury, show that the defendant must have had at least a fair
chance of avoiding the infliction of harm before he becomes answerable for such
a consequence of his conduct. And it is certainly arguable that even a fair
chance to avoid bringing harm to pass is not sufficient to throw upon a person
the peril of his conduct, unless, judged by average standards, he is also to
blame for what he does.